Skip to main content
The Globe and Mail
Support Quality Journalism.
The Globe and Mail
First Access to Latest
Investment News
Collection of curated
e-books and guides
Inform your decisions via
Globe Investor Tools
Just$1.99
per week
for first 24 weeks

Enjoy unlimited digital access
Enjoy Unlimited Digital Access
Get full access to globeandmail.com
Just $1.99per week for the first 24weeks
Just $1.99per week for the first 24weeks
var select={root:".js-sub-pencil",control:".js-sub-pencil-control",open:"o-sub-pencil--open",closed:"o-sub-pencil--closed"},dom={},allowExpand=!0;function pencilInit(o){var e=arguments.length>1&&void 0!==arguments[1]&&arguments[1];select.root=o,dom.root=document.querySelector(select.root),dom.root&&(dom.control=document.querySelector(select.control),dom.control.addEventListener("click",onToggleClicked),setPanelState(e),window.addEventListener("scroll",onWindowScroll),dom.root.removeAttribute("hidden"))}function isPanelOpen(){return dom.root.classList.contains(select.open)}function setPanelState(o){dom.root.classList[o?"add":"remove"](select.open),dom.root.classList[o?"remove":"add"](select.closed),dom.control.setAttribute("aria-expanded",o)}function onToggleClicked(){var l=!isPanelOpen();setPanelState(l)}function onWindowScroll(){window.requestAnimationFrame(function() {var l=isPanelOpen(),n=0===(document.body.scrollTop||document.documentElement.scrollTop);n||l||!allowExpand?n&&l&&(allowExpand=!0,setPanelState(!1)):(allowExpand=!1,setPanelState(!0))});}pencilInit(".js-sub-pencil",!1); // via darwin-bg var slideIndex = 0; carousel(); function carousel() { var i; var x = document.getElementsByClassName("subs_valueprop"); for (i = 0; i < x.length; i++) { x[i].style.display = "none"; } slideIndex++; if (slideIndex> x.length) { slideIndex = 1; } x[slideIndex - 1].style.display = "block"; setTimeout(carousel, 2500); } //

Globe and Mail columnist Jeffrey Simpson.

The Globe and Mail

Legal scholars like the word "dialogue" to explain the relationship between the Supreme Court, and courts in general, and Parliament.

"Dialogue" is a seductive word. Who can be against "dialogue"? It means an exchange of views between at least two people, one perhaps learning from the other.

Except that, since courts are more popular than legislatures, judges more respected than politicians, and legal scholars themselves prefer the legalisms of courts to the hurly-burly of politics, "dialogue" usually means for them that the courts should tell Parliament what to do, and Parliament should follow.

Story continues below advertisement

That's not dialogue but rather diktat, which leads to the question in some policy areas: Who is making the laws? Judges or elected officials? In the age of the Charter of Rights and Freedoms (the most Americanizing influence on contemporary Canada), the answer is often judges.

Some critics decry the federal government's proposed legislation on medically assisted death (or right-to-die, if you prefer), which itself is a response to a Supreme Court ruling legalizing and defining the practice; they argue that Bill C-14 does not go as far in allowing the practice as the top court had suggested in its February, 2015, ruling.

Critics consider that Bill C-14, now before the Senate, varies to some extent from the Supreme Court's ruling and the recent interventions by high courts in Alberta and Ontario, and is therefore unconstitutional.

Just you wait, the critics argue: Somebody will immediately challenge the new law and the Supreme Court will strike it down. Maybe the critics are right. Maybe the critics are wrong. But critics possess a certainty about a possible case whose parameters cannot be foretold, whose arguments cannot be predicted before a court whose decision cannot be yet carved in judicial stone.

All this parliamentary debate on a complicated and emotional subject is being held under a timeline imposed by the Supreme Court. At first, the judges gave Parliament a year to pass a law along the lines the court had outlined. The previous Conservative government was not keen on such a law and predictably delayed, after which an election got in the way.

So the court, when asked, blessed the new Trudeau government with another four months, to June 6, to get cracking and pass something. This four-month extension was completely arbitrary – it could have been six months or seven or eight.

Faced with the court-imposed deadline, Parliament has been speeding up matters, which is unfortunate for an issue of this complexity. Legislatures are messy institutions that sometimes take longer than might be hoped to deal with things, but then such is public affairs.

Story continues below advertisement

When Bill C-14 is finalized, what if some of its terms do not quite line up with the wording or the strict intent of the Supreme Court's ruling?

A real "dialogue" – that word beloved of legal scholars – would then have taken place. Parliament would have heard the court and accepted some of the judges' reasoning and intent, but decided on some variances.

At issue seems to be that the Liberal government's bill restricts the "right-to-die" to people who are terminally ill whereas the court ruling offered a wider right. The Alberta Court of Appeal recently weighed in, insisting that death need not be "reasonably foreseeable," as the proposed bill suggests, but rather a more amorphous notion of the loss of quality of life.

Assisted death is something new in Canada. We have only scattered international experience on which to draw. Our physicians and hospitals, where the deaths would likely occur, are not schooled in handling assisted death. Perhaps that explains why the Canadian Medical Association supports the government's bill that is somewhat more restrictive that the Supreme Court ruling.

Who is to say with certainty, therefore, that the court or the government is right or wrong on an issue so new and complicated?

The court, as it must, had to construct arguments of theory and what it presumed to be the law, reading assisted death into the Charter of Rights. It will not administer whatever law emerges; indeed, it would be difficult to imagine judges knowing much about how to administer any law in this new field.

Story continues below advertisement

So if "dialogue" were truly a two-way street, as opposed to diktat, the court, if asked, would say: We gave Parliament guidance, not all of which was accepted. Fine. Let the law be the law. We judges are not omnipotent, especially in a new field where law is being created.

Let trial and error unfold before we revisit the issue, if revisit it we must.

Your Globe

Build your personal news feed

  1. Follow topics and authors relevant to your reading interests.
  2. Check your Following feed daily, and never miss an article. Access your Following feed from your account menu at the top right corner of every page.

Follow topics related to this article:

View more suggestions in Following Read more about following topics and authors
Report an error Editorial code of conduct
Due to technical reasons, we have temporarily removed commenting from our articles. We hope to have this fixed soon. Thank you for your patience. If you are looking to give feedback on our new site, please send it along to feedback@globeandmail.com. If you want to write a letter to the editor, please forward to letters@globeandmail.com.

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff. Non-subscribers can read and sort comments but will not be able to engage with them in any way. Click here to subscribe.

If you would like to write a letter to the editor, please forward it to letters@globeandmail.com. Readers can also interact with The Globe on Facebook and Twitter .

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff. Non-subscribers can read and sort comments but will not be able to engage with them in any way. Click here to subscribe.

If you would like to write a letter to the editor, please forward it to letters@globeandmail.com. Readers can also interact with The Globe on Facebook and Twitter .

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff.

We aim to create a safe and valuable space for discussion and debate. That means:

  • Treat others as you wish to be treated
  • Criticize ideas, not people
  • Stay on topic
  • Avoid the use of toxic and offensive language
  • Flag bad behaviour

If you do not see your comment posted immediately, it is being reviewed by the moderation team and may appear shortly, generally within an hour.

We aim to have all comments reviewed in a timely manner.

Comments that violate our community guidelines will not be posted.

UPDATED: Read our community guidelines here

Discussion loading ...

To view this site properly, enable cookies in your browser. Read our privacy policy to learn more.
How to enable cookies